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concluding that a state court's rejection of a Batson claim when defense counsel insufficiently articulated the reasons for his challenge before the New York Supreme Court was not an unreasonable application of clearly established federal law
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SUMMARY ORDER No. 05-1586-pr.
January 18, 2008.
AFTER ARGUMENT AND UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is AFFIRMED.
MALVINA NATHANSON, New York, NY, for Petitioner-Appellant.
VICTOR BARALL, Assistant District Attorney (Charles J. Hynes, District Attorney, Kings County, Ann Bordley, Assistant District Attorney, Leonard Joblove, Assistant District Attorney, on the brief), Brooklyn, NY, for Respondents-Appellees.
PRESENT: HON. CHESTER J. STRAUB, HON. RICHARD C. WESLEY, HON. DEBRA ANN LIVINGSTON, Circuit Judges.
Petitioner Jerome Anderson appeals from the judgment of the United States District Court for the Eastern District of New York (Frederic Block, Judge) denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On appeal, Anderson argues that the District Court erroneously concluded that the Appellate Division of New York Supreme Court had not unreasonably applied federal law in affirming his conviction in spite of Anderson's claimed violation of his constitutional rights under Batson v. Kentucky, 476 U.S. 79 (1986). In addition, Anderson contends that the trial court deprived him of his due process rights under the Fourteenth Amendment to provide a defense when the trial court allowed the government to argue, in summation, that the jury should consider evidence of the characteristics of several crimes as demonstrating a common modus operandi. For the reasons set forth below, we affirm the District Court's denial of the petition.
Anderson's first challenge to the District Court's denial of his habeas petition involves his Batson claim asserted in state court. Anderson argues that he had come forward with sufficient evidence of a prima facie case of race discrimination at the time he made his Batson challenge and that the state trial court erred in concluding otherwise. On direct appeal, the Appellate Division of New York Supreme Court explicitly rejected this basis for challenging Anderson's conviction, People v. Anderson, 294 A.D.2d 511 (2d Dep't 2002), and the New York Court of Appeals denied leave to appeal from that decision, People v. Anderson, 99 N.Y.2d 533 (2002). As Anderson exhausted his state remedies and the state courts adjudicated his claim on the merits, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires us to give deference to the Appellate Division decision. See Mosby v. Senkowski, 470 F.3d 515, 519 (2d Cir. 2006) (characterizing standard of review as "highly deferential").
Under AEDPA, a federal court may not grant habeas relief to a petitioner such as Anderson unless the Appellate Division's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). In affirming Anderson's conviction, the Appellate Division held that he had "failed to articulate on the record a sound factual basis for his Batson claim." Anderson, 294 A.D.2d at 511. In so doing, the Appellate Division stated that "[i]t is incumbent upon the party mounting a Batson challenge to `articulate and develop all of the grounds supporting the claim, both factual and legal, during the colloquy in which the objection is raised and discussed.'" Id. (quoting People v. Childress, 81 N.Y.2d 263, 268 (1993)). As stated by his counsel, Anderson's Batson challenge consisted of asserting only the following alleged facts: the proportion of the government's total peremptory challenges exercised against African-American jurors (nine of fourteen); the proportion of potential African-American jurors, available at the completion of challenges for cause, peremptorily challenged by the government (nine of thirteen); and, finally, the absence of race-neutral reasons for the government's peremptory challenges against three of five African-American jurors in the most recent round. As relief, Anderson asked that one of these three jurors be seated. The Appellate Division concluded that this statement by Anderson's counsel failed to meet the Childress standard for sufficiently articulating a prima facie case of a Batson claim. Id.
Although Anderson's counsel asserted that the government had used nine peremptory challenges against African-American jurors, the Challenge Record contemporaneously maintained by the New York Supreme Court shows that the government had actually used ten of its fourteen peremptory challenges against African-Americans.
The Challenge Record shows that eighteen African-American jurors had been called in the first three rounds of selection and that two had been dismissed for cause. As the government had used ten peremptory challenges against African-American jurors at this point, the correct proportion is ten of sixteen.
Like the District Court, we conclude that the decision of the Appellate Division was neither "contrary to" nor an "unreasonable application" of clearly established federal law. 28 U.S.C. § 2254(d)(1). A state court decision is "contrary to" clearly established federal law "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different conclusion. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Alternatively, a state court decision involves an "unreasonable application" of clearly established federal law if it unreasonably applies Supreme Court precedent to the particular facts of a case. See id. at 409. In other words, a court must "ask whether the state court's application of clearly established federal law was objectively unreasonable," not whether the application was erroneous or incorrect. Id. In that respect, we have stated that the standard "falls somewhere between merely erroneous and unreasonable to all reasonable jurists." Wade v. Mantello, 333 F.3d 51, 57 (2d Cir. 2003) (citation and internal quotation marks omitted).
Here, the District Court concluded that there existed a "meritorious basis" for a Batson challenge based upon the facts and circumstances then known. Anderson v. Super. Elmira Corr. Fac., 360 F.Supp.2d 477, 496 (E.D.N.Y. 2005). However, the District Court nonetheless denied Anderson's petition on the ground that the basis for the Appellate Division's rejection of the Batson claim — that Anderson had insufficiently articulated the reasons for his challenge before the New York Supreme Court — was not an unreasonable application of clearly established federal law. See id. at 495. On November 15, 1999, the date on which Anderson made his Batson challenge, the only guidance from the Supreme Court as to what constitutes a prima facie case in this context was Batson itself:
In his brief, Anderson also relies upon Johnson v. California, 545 U.S. 162 (2005), which postdated Anderson's trial and rejected the rule in California that a prima facie case of a Batson claim requires "strong evidence that makes discriminatory intent more likely than not if the challenges are not explained." Id. at 167, 173 (emphasis and internal quotation marks omitted). While Johnson arguably addresses issues raised in Anderson's petition, it does not bear on the question of whether the Appellate Division's decision here involved an unreasonable application of clearly established federal law. In considering the "unreasonable application" prong of 28 U.S.C. § 2254(d)(1), "we decide not whether the state court correctly interpreted the doctrine of federal law on which the claim is predicated, but rather whether the state court's interpretation was unreasonable in light of the holdings of the United States Supreme Court at the time." Brown v. Greiner, 409 F.3d 523, 533 (2d Cir. 2005) (emphasis added).
In deciding whether the defendant has made the requisite [prima facie] showing, the trial court should consider all relevant circumstances. For example, a "pattern" of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative.
476 U.S. at 96-97. See also Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002) ("Other than through these illustrative examples, the Court has not, to date, provided a more particularized view of what constitutes a prima facie showing of discrimination under Batson.").
Upon hearing Anderson's Batson challenge, the New York Supreme Court neither applied a "more likely than not" standard nor required "strong evidence" from Anderson in violation of Johnson. Instead, the trial court correctly stated that Anderson was "required . . . to show that there exist facts and other relevant circumstances sufficient to raise an inference that the prosecution used its peremptory challenges to exclude potential jurors because of their race." In applying this standard, the trial court held that it was insufficient for Anderson merely to allege the proportion of the government's total peremptory challenges against African-American jurors, the proportion of potential African-American jurors peremptorily challenged by the government, and the absence of race-neutral reasons for the government's peremptory challenges against three African-American jurors in the most recent round. As we observed in Overton, 295 F.3d at 278, "we have no doubt that statistics, alone and without more, can, in appropriate circumstances, be sufficient to establish the requisite prima facie showing under Batson." See, e.g., Harris v. Kuhlmann, 346 F.3d 330, 345-46 (2d Cir. 2003) (holding that a prima facie case was established simply on the basis of the prosecutor's striking the only five African-American jurors); Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir. 1998) (holding that a prosecutor's striking the only three African-American jurors on the panel was a "sufficiently dramatic pattern of actions to make out of a prima facie case"). Although Anderson presents additional statistics-based arguments on appeal, neither these arguments nor any non-numerical facts or circumstances were raised before the New York Supreme Court. Like the District Court, we cannot conclude the Appellate Division unreasonably applied clearly established federal law in holding that Anderson had not made out a prima facie case of Batson discrimination during jury selection by relying only upon statistics under these circumstances. Cf. Overton, 295 F.3d at 273, 280 (holding that the state courts had not unreasonably applied clearly established federal law in concluding that no prima facie case of Batson discrimination had been established where defendant's counsel claimed that, by her "rough count," the government had used seven of nine peremptory challenges against African-Americans).
Although Anderson's counsel also argued that there was "no discernible basis other than racial discrimination" for the government's exercise of peremptory challenges in the third round of jury selection, such an absence of any explicit justification is to be expected when either party exercises a peremptory challenge. See United States v. Stavroulakis, 952 F.2d 686, 696 (2d Cir. 1992) ("Because a peremptory challenge initially requires no explanation, no "smoking gun" will usually be present. . . ."), cert. denied, 504 U.S. 926 (1992).
Anderson's second basis for his habeas petition is that the New York Supreme Court violated his Fourteenth Amendment due process rights by allowing the government to argue that the evidence of various crimes demonstrated a common modus operandi and thus were likely perpetrated by the same individual. Specifically, Anderson argues that the government changed its theory of the case in seeking to make such an argument in its summation. As this alleged change occurred only after both sides had rested, Anderson argues that he had constitutionally deficient notice that the government might seek to make such an argument and was thus effectively deprived of his right to make a defense.
As with Anderson's Batson claim, we first must determine whether Anderson exhausted his state remedies regarding his defense deprivation claim and whether the state courts adjudicated this claim on the merits. Anderson discussed this claim in his Appellate Division brief, and the court disposed of the claim with the statement that this claim and Anderson's other "remaining contentions are either unpreserved for appellate review or without merit." Anderson, 294 A.D.2d at 511. We have held that the use of this language by the state courts creates a "conclusive presumption that the adjudication rested on the merits" for purposes of AEDPA review. Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006), cert. denied, 127 S.Ct. 1267 (2007); see Jimenez v. Walker, 458 F.3d 130, 145-46 (2d Cir. 2006), cert. denied, 127 S.Ct. 976 (2007).
As we conclusively presume that the Appellate Division adjudicated the defense deprivation claim on the merits, we must determine whether the Appellate Division's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Anderson has identified no "governing law" set forth in Supreme Court precedent that contradicts the decision of the Appellate Division or that addresses "materially indistinguishable" facts. Williams, 529 U.S. at 405-06. Instead, Anderson's argument in his brief can only be interpreted as one that the Appellate Division unreasonably applied Supreme Court precedent — specifically, the decision of Lankford v. Idaho, 500 U.S. 110 (1991). In that case, the Supreme Court held that the trial court violated the defendant's due process rights by sentencing the defendant to death despite the fact that neither the prosecutor nor the court had previously given the defendant any notice that such a sentence was sought in the case. Id. at 127.
Even assuming that Lankford applies here despite the obvious differences between the possibility of a defendant facing the death penalty and the possibility of a defendant responding to a government argument about evidence of a common modus operandi among various crimes, Anderson has failed to show that the Appellate Division's decision on his defense deprivation claim was an unreasonable application of Lankford. Specifically, in advancing this claim as a basis for habeas relief, Anderson reads too much into the trial court's denial of his severance motion before trial. In denying Anderson's severance motion, the trial court stated as follows:
Our research has uncovered neither a decision of ours applying Lankford nor one of the Supreme Court extending its holding to any other context. However, we agree with the District Court that the instant case is distinguishable from Lankford on the ground that, unlike in that case, "there were no additional facts that Anderson could have adduced to counter the impact of the ruling since the crimes to which the [common modus operandi] ruling attached were the very same crimes for which he was being prosecuted." Anderson, 360 F.Supp.2d at 486.
There is no substantial difference in quantum of proof for the different incidents. The People's proof with respect to each crime is straightforward and easily segregable in the Jury's mind and the jury may be instructed that it cannot consider any evidence with respect to one incident while deliberating on the other incidents.
To the extent that Anderson interpreted this statement as a ruling by the trial court that the government could not make a common modus operandi argument by relying upon evidence of the various crimes, such an interpretation is unreasonable due to the court's use of the conditional language that the jury "may be instructed" in any particular manner.
In advancing his defense deprivation claim, Anderson also relies upon the government's failure to object to statements made by his counsel during another pretrial proceeding and during voir dire. Specifically, Anderson notes that the government did not object to his subsequent interpretation of the trial court's denial of his severance motion as effectively authorizing "what amounts to four trials under one roof and that the rules of evidence should be applied accordingly." As this vague characterization of the anticipated trial proceedings did not raise the issue of the possible reliance by the government upon common modus operandi evidence, the government's failure to object to Anderson's interpretation of the trial court's earlier ruling is irrelevant. In addition, Anderson relies upon the fact that the government did not object to his counsel's statements during voir dire questioning that the jury would be asked to decide the guilt for each crime based upon evidence relevant only to that crime. Such a characterization merely explains the role of any jury at any criminal trial — to consider only relevant evidence in determining the guilt of the defendant for the crime charged. See FED. R. EVID. 402 (prohibiting the admission of irrelevant evidence). To the extent that Anderson argues that the jury misunderstood the role of the modus operandi evidence at issue here, the trial court gave the jury a lengthy instruction on the issue:
[U]nless the Court specifically instructs you otherwise, you are required to separate in your mind the evidence applicable solely to each crime and return a verdict on each crime based solely on the evidence applicable to that crime.
. . .
Solely as a contention of the [government], the evidence of other crimes charged in this indictment is offered for the singular purpose of establishing the identity of the defendant based upon a comparison of the perpetrator's alleged modus operandi or method used during the commission of the other crimes and for no other purpose.
Such evidence is no proof whatsoever that the defendant had any propensity or disposition to commit any of the crimes charged in this indictment and must not be used for such purpose. And I repeat it as being — it is being received solely as a contention of the [government], which the defendant denies.
Anderson has failed to show that the Appellate Division unreasonably applied clearly established federal law in concluding that he did not receive constitutionally deficient notice of the government's intention to argue that the characteristics of the various crimes with which Anderson was charged demonstrated a common modus operandi and thus were likely committed by the same individual.
In sum, we have considered all arguments presented by Anderson in this appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the denial of the petition by the District Court.